Sheppard v. State, (No. 6630.)

• Decision Date: 16 November 1928
• Docket Number: (No. 6630.)
• Citation: 167 Ga. 326,145 S.E. 654
• Parties: SHEPPARD. v. STATE.
• Court: Georgia Supreme Court

167 Ga. 326

145 S.E. 654

SHEPPARD.

v.STATE.

(No. 6630.)

Supreme Court of Georgia.

Nov. 16, 1928.

(Syllabus by the Court.)

Error from Superior Court, Fulton County; E. D. Thomas, Judge.

R. H. Sheppard was convicted of murder, and he brings error. Affirmed.

See, also, 165 Ga. 460, 141 S. E. 196.

Dovie Braswell, sworn for the state, testified:

"On the 18th day of February, 1927, I was living at 889 Marietta Street. I was living there at the time Homer Fowler was killed. I am now living right off of Crooked Road with my grandmother and John Davidson, my uncle. I was present at the time Homer Fowler gothis injuries. R. H. Sheppard hit him with an axe—Sheppard's axe. The axe you present to me looks kind of like the same axe. R. H. Sheppard was boarding with us at that time. He had a cot up there at our house. We stayed in the front room, and he stayed in the kitchen. When I say kitchen, I mean, the second room. There are three rooms to this house, all in a row, one right behind the other. When you go in the front door, you go into a room, and that was my sister's and my room. The room he stayed in was directly behind the front room. We were not using the back room of the house at all. On the day that this happened, Homer Fowler came to my house about 3:00 or 4:00 o'clock; somewhere along there; in the afternoon. Sheppard and Roy Fowler came with him. By 'Sheppard' I mean the man who is on trial. Roy Fowler had been to my house before he came there with Homer. Roy came there, and Sheppard went off with Roy in the afternoon; I don't know exactly what time it was. They went in a car—a truck, if I am not mistaken. They were not gone but about an hour, I reckon, and when they came back, Homer was with them. As to whether or not they were in the same truck, I reckon they were. I think Sheppard came in first, and Roy behind him; and then Homer Fowler came in. When Sheppard and Roy came in, the door was closed before Homer came in. It wasn't but just a few minutes before Homer came in. When he came in, me and my sister were in the front room. Sheppard and Roy had gone on into the kitchen, the middle room. Homer came in and sat down, and went on in the kitchen where Roy and Sheppard were. He sat down in the front room. I do not know why he left the front room and went back to where they were. After he went back in the middle room with Roy and Sheppard, I do not know anything that went on in there. I did not go in there. The door between those rooms was open. Roy called me in there and asked me to go to the show with him, and I told him I could not go, I had to stay there with my sister, who was sick. She was up, but she had just got up out of bed. There wasn't anybody else living there but just my sister and myself and Sheppard. My sister had a baby eight months old, and the child was living there too. Homer and Sheppard were in the middle room when I went back there to talk to Roy about going to the show with him. As to our conversation about that—I told him I couldn't go and I went back in the front room. The next thing that happened there in the house, Sheppard hit Homer with the axe. Before this happened, I think Homer called my sister and asked her to come in there. Sheppard said, 'stay right where you are at;' and told her not to come in there at all. That happened only one time. I was in the room where Homer was, at the time he was struck. The axe was sitting in the corner of the room, and Sheppard grabbed it up and hit Homer, and then he ran right off and Paul Finch and Johnnie out of the room with the axe, he told them he was going to kill that G—— d—— s—— of a b——. He was talking about Homer Fowler. Roy went out the back, and Paul went out the front.

"Q. How many times did he hit Homer? A. I think he was hit twice. Mr. Knight: I ob ject to that, she says she thinks. The witness: The first time he was hit, Homer Fowler was standing up by the side of the window, and Sheppard was standing kind of in the corner. Homer was just leaning up against the window, standing with his side up against the window. Homer was drunk at that time. When Sheppard struck him the first time, Sheppard went out of the room, out doors on the street. I went out on the front porch. Sheppard went in the room and pushed the door to, and I heard the axe fall on the floor. Sheppard then went out on the street. When Homer was struck the first time with the axe, he fell on the floor. When I ran out of the room, he was laying on the floor. He was still; I did not hear him say anything. At the time Homer was struck the first time, Vena was sitting there in the front of the door, and when Sheppard picked up the axe to hit him, she went to the door and asked him not to do it. I think she said, 'Lord, don't do that;' or, 'Lord have mercy; don't do that;' or something like that. When Sheppard picked up the axe to hit Homer with it the first time, the front door was shut, but the door that went into the dining room and kitchen was open. At the time this occurred the baby was on the bed in the front room. That is mine and my sister's room. Homer had not been there that day, before the time when he was hit. I never heard Homer say anything after he was struck the first time. I did not see no money there that day."

John Fowler, sworn for the state, testified:

"I was at the house where the killing took place, when it happened. I had started down Marietta Street to the drug store, and seen his ear parked in front of the house. It was a Ford car with a truck body on it. I knew his car by sight, and I went on up pretty close in front of the house, and I heard some cussing goin' on, and some loud talk, and I went in. In that house was a fellow by the name of Finch and Vena Black, and Dovie Braswell, Homer Fowler and Roy Fowler, and Sheppard. One of the women, and Paul Finch, were in the front room. Homer Fowler, Roy Fowler, Dovie Braswell and Sheppard were in the next room. That was a little three room shotgun house. As to whether or not I went into the second room—I went to the second room—I went to the door and leaned up against the door facing. When I got to the middle door there, Sheppard says to me, 'you are on my side, aint you?' I said, 'No, I am not on anybody's side;' and Homer Fowler called Vena Black—she was in the front room—and told her, says, 'come in here;' and Sheppard spoke up and said, 'don't you come a damn step; stay where you are at.' Homer repeated it, and so did Sheppard, and Roy Fowler spoke up and said, 'Sheppard, let's not get anything started.' Sheppard grabbed the axe and started at Roy Fowler, and ran him out the back, and turned around and came back and hit Homer Fowler with the axe in the head, and started at me and said, 'G—— d—— you, I will get you too, ' but I ran out the front door. When Homer was struck, he was in the middle room near about the center of the floor, I reckon. I saw R. H. Sheppard when he struck him. He was not doing anything but just standing there when he was struck. I did not see him have anything inhis hands at that time. I did not hear him say anything to Sheppard after I got in there. I did not see him do anything or try to do anything to Sheppard. As to whether he was drunk or sober—I could not say he was drunk, but he could not stand up hardly."

W. P. Finch, sworn for the state, testified:

"That fellow over there asked Homer, Mr. Fowler, would he do him a favor, would he lend him $3.00 until Monday. He said he didn't get his pay until Monday. Mr. Fowler kind of grunted twice and never made any other reply, never spoke. They got up there and went into the middle room. They had been in there just a few minutes until I heard some one bring out an ugly word, and Sheppard said 'you aint big enough, you G—— d—— s—— of a b——, I'll kill you.' I went towards the door, and just as I looked he struck him with an axe this way, with both hands, and about that time Johnny Fowler ran in, and he said to Johnny, 'you are on my side, aint you?' Johnny said no, he was not on anybody's side. He said 'G—— d——you, I'll kill you too, ' and ran at him with the axe. He ran out."

F. S. Hall, sworn as a witness for the state, testified:

"On February 19, the afternoon on which Homer Fowler is said to have been killed, I was out at the stock yard. I saw Mr. Sheppard, the man at the far end of that table there, out at the stock yard that afternoon. First he came there in the office and wanted to hire somebody to carry him to Marietta. I heard him say that. He struck up with Clifford Rigs-dale, and he told Clifford that he had to be in Marietta in about thirty minutes, something like that, and he would give him twenty dollars to carry him up there. He said he had the money to pay him with, and he took a roll of bills out, a roll of money, and showed it to him. It was paper money. When he first came in, there was a fellow there that stayed around there—I forget his name. If you should call it I would remember it. He was standing there and he told him he would carry him. They went out of the office together. As they walked out, Sheppard ran up the road. We were talking there, and directly Sheppard ran back and said 'Mr. Hall.' That other man was not with him. They walked out together, but Sheppard ran up a little side street and in five or ten minutes came back to the office and said 'Mr. Hall, I want to hire you to carry me to Marietta.' I just kidded him and said 'You have not got money enough to pay me to carry you.' He pulled out a roll and said 'let me show you my money.' He and I were counting it, I was fooling with him. While we were counting it Chief Vinson came up and arrested him. I had the money in my hand. He ran over and took it, and Vinson took it out of his hand. As to what reason he gave for having to be in Marietta in thirty minutes—he just said somebody had a friend of his arrested and he had to go and identify him up there."

T. J. Davis, sworn for ...